EXHIBIT 10.8
QUIKSILVER, INC.
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made as of this _____
day of _____, 200_, by and between QUIKSILVER, INC., a Delaware corporation (the
"Company"), and ___________ (the "Indemnitee"), an ________ of the Company.
A. The Indemnitee is currently serving as ______________________ of
the Company and in such capacity renders valuable services to the Company.
B. The Company has investigated whether additional protective measures
are warranted to protect adequately its directors and officers against various
legal risks and potential liabilities to which such individuals are subject due
to their position with the Company and has concluded that additional protective
measures are warranted.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to continue to serve as officers and directors,
the Board of Directors has determined, after due consideration, that this
Agreement is not only reasonable and prudent, but necessary to promote and
ensure the best interests of the Company and its stockholders.
NOW, THEREFORE, in consideration of the continued services of the
Indemnitee and as an inducement to the Indemnitee to continue to serve as
_________ of the Company, the Company and the Indemnitee do hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below:
(a) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative or investigative
nature, by reason of the fact that the Indemnitee is or was an officer and/or a
director of the Company, or is or was serving at the request of the Company as
director, officer, employee or agent of another enterprise, whether or not he is
serving in such capacity at the time any liability or Expense is incurred for
which indemnification or advancement of Expenses is to be provided under this
Agreement.
(b) "Expenses" means, all costs, charges and expenses incurred in
connection with a Proceeding, including, without limitation, attorneys' fees,
disbursements and retainers, accounting and witness fees, travel and deposition
costs, expenses of investigations, judicial or administrative proceedings or
appeals, and any expenses of establishing a right to indemnification pursuant to
this Agreement or otherwise, including reasonable compensation for time spent by
the Indemnitee in connection with the investigation, defense or appeal of a
Proceeding or action for indemnification for which he is not otherwise
compensated by the Company or any third party; provided, however, that the term
"Expenses" includes only those
costs, charges and expenses incurred with the Company's consent, which consent
shall not be unreasonably withheld; and provided further, that the term
"Expenses" does not include the amount of damages, judgments, amounts paid in
settlement, fines, penalties or excise taxes under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), actually levied against the
Indemnitee or paid by or on behalf of the Indemnitee.
2. AGREEMENT TO SERVE. The Indemnitee agrees to continue to serve as
____________of the Company at the will of the Company for so long as Indemnitee
is duly elected or appointed or until such time as Indemnitee tenders a
resignation in writing or is terminated, as ____________ by the Company. Nothing
in this Agreement shall be construed to create any right in Indemnitee to
continued service as _________ of the Company.
3. INDEMNIFICATION IN THIRD PARTY ACTIONS. The Company shall indemnify
the Indemnitee in accordance with the provisions of this Section 3 if the
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Company to procure a judgment in its favor), by reason of the fact that the
Indemnitee is or was an officer and/or a director of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, against all Expenses, damages, judgments, amounts paid in
settlement, fines, penalties and ERISA excise taxes actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of such
Proceeding, to the fullest extent permitted by Delaware law; provided that any
settlement shall be approved in writing by the Company.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
The Company shall indemnify the Indemnitee in accordance with the provisions of
this Section 4 if the Indemnitee is a party to or threatened to be made a party
to or otherwise involved in any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee is or
was an officer and/or a director of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
enterprise, against all Expenses actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding, to the fullest
extent permitted by Delaware law.
5. CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT. The
Indemnitee shall be conclusively presumed to have met the relevant standards of
conduct required by Delaware law for indemnification pursuant to this Agreement,
unless a determination is made that the Indemnitee has not met such standards by
(i) the Board of Directors of the Company by a majority vote of a quorum thereof
consisting of directors who were not parties to such Proceeding, (ii) the
stockholders of the Company by majority vote, or (iii) in a written opinion of
independent legal counsel, the selection of whom has been approved by the
Indemnitee in writing.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
any other provision of this Agreement, to the extent that the Indemnitee has
been successful on the merits or otherwise in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the dismissal of a
Proceeding without prejudice, the Indemnitee shall be
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indemnified against all Expenses incurred in connection therewith to the fullest
extent permitted by Delaware law.
7. ADVANCES OF EXPENSES. The Expenses incurred by the Indemnitee in
any Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by Delaware law; provided that the Indemnitee shall
undertake in writing to repay such amount to the extent that it is ultimately
determined that the Indemnitee is not entitled to indemnification by the
Company.
8. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, damages, judgments, amounts paid in settlement, fines,
penalties or ERISA excise taxes actually and reasonably incurred by Indemnitee
in the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion of such Expenses, damages, judgments, amounts
paid in settlement, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
9. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO
INDEMNIFICATION.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding with respect to which the Indemnitee intends to
claim indemnification pursuant to this Agreement, the Indemnitee will notify the
Company of the commencement thereof. The omission to so notify the Company will
not relieve the Company from any liability which it may have to the Indemnitee
under this Agreement or otherwise.
(b) If a claim under this Agreement is not paid by or on behalf
of the Company within 30 days of receipt of written notice thereof, Indemnitee
may at any time thereafter bring suit in any court of competent jurisdiction
against the Company to enforce the right to indemnification provided by this
Agreement. It shall be a defense to any such action (other than an action
brought to enforce a claim for Expenses incurred in defending any Proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Company) that the Indemnitee has failed to
meet the standard of conduct that makes it permissible under Delaware law for
the Company to indemnify the Indemnitee for the amount claimed. The burden of
proving by clear and convincing evidence that indemnification or advancement of
Expenses are not appropriate shall be on the Company. The failure of the
directors or stockholders of the Company or independent legal counsel to have
made a determination prior to the commencement of such Proceeding that
indemnification or advancement of Expenses are proper in the circumstances
because the Indemnitee has met the applicable standard of conduct shall not be a
defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct.
(c) The Indemnitee's Expenses incurred in connection with any
action concerning Indemnitee's right to indemnification or advancement of
Expenses in whole or in part pursuant to this Agreement shall also be
indemnified by the Company regardless of the
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outcome of such action, unless a court of competent jurisdiction determines that
each of the material claims made by the Indemnitee in such action was not made
in good faith or was frivolous.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may wish,
the Company may assume the defense thereof, with counsel satisfactory to the
Indemnitee. After notice from the Company to the Indemnitee of its election to
assume the defense of a Proceeding, the Company will not be liable to the
Indemnitee under this Agreement for any Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The Company shall not settle
any Proceeding in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. The Indemnitee shall have
the right to employ counsel in any Proceeding, but the Expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of the Indemnitee, unless (i) the employment of counsel
by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of a Proceeding, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of a Proceeding, in each of which cases the Expenses of the Indemnitee's counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any Proceeding brought by or on behalf of the Company or
as to which the Indemnitee has concluded that there may be a conflict of
interest between the Company and the Indemnitee.
10. LIMITATIONS ON INDEMNIFICATION. No payments pursuant to this
Agreement shall be made by the Company:
(a) to indemnify or advance Expenses to the Indemnitee with
respect to actions initiated or brought voluntarily by the Indemnitee and not by
way of defense except with respect to actions brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under Delaware law, but such indemnification or
advancement of Expenses may be provided by the Company in specific cases if
approved by the Board of Directors by a majority vote of a quorum thereof
consisting of directors who are not parties to such action;
(b) to indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
for which payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond the amount
paid under such insurance;
(c) to indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
for which the Indemnitee has been or is indemnified by the Company otherwise
than pursuant to this Agreement;
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(d) indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines or penalties sustained in any
Proceeding for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder or similar provisions of any federal, state
or local statutory law;
(e) to indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
resulting from Indemnitee's conduct which is finally adjudicated by a court of
competent jurisdiction (i) to have been knowingly fraudulent, a knowing
violation of law, deliberately dishonest or in violation of Indemnitee's duty of
loyalty to the Company or (ii) to have involved willful misconduct on the part
of the Indemnitee; or
(f) if a court of competent jurisdiction shall enter a final
order, decree or judgment to the effect that such indemnification or advancement
of Expenses hereunder is unlawful under the circumstances.
11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed to limit
or preclude any other rights to which the Indemnitee may be entitled under the
Certificate of Incorporation, the Bylaws, any agreement, any vote of
stockholders or disinterested directors, Delaware law, or otherwise, both as to
action in Indemnitee's official capacity and as to action in any other capacity
on behalf of the Company while holding such office.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of (i) the Indemnitee and Indemnitee's heirs,
personal representatives, executors, administrators and assigns and (ii) the
Company and its successors and assigns, including any transferee of all or
substantially all of the Company's assets and any successor or assign of the
Company by merger or by operation of law.
13. SEPARABILITY. Each provision of this Agreement is a separate and
distinct agreement and independent of the other, so that if any provision hereof
shall be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. To the extent required, any provision of this Agreement may
be modified by a court of competent jurisdiction to preserve its validity and to
provide the Indemnitee with the broadest possible indemnification and
advancement of Expenses permitted under Delaware law. If this Agreement or any
portion thereof is invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee as to
Expenses, damages, judgments, amounts paid in settlement, fines, penalties or
ERISA excise taxes with respect to any Proceeding to the full extent permitted
by any applicable portion of this Agreement that shall not have been invalidated
or by any applicable provision of Delaware law or the law of any other
jurisdiction.
14. HEADINGS. The Headings used herein are for convenience only and
shall not be used in construing or interpreting any provision of the Agreement.
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15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
16. AMENDMENTS AND WAIVERS. No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective unless in
writing and signed by the party against whom enforcement is sought. The
indemnification rights afforded to the Indemnitee hereby are contract rights and
may not be diminished, eliminated or otherwise affected by amendments to the
Company's Certificate of Incorporation, Bylaws or agreements, including any
directors' and officers' liability insurance policies, whether the alleged
actions or conduct giving rise to indemnification hereunder arose before or
after any such amendment. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof, whether or
not similar, nor shall any waiver constitute a continuing waiver.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
18. NOTICES. All notices and communications shall be in writing and
shall be deemed duly given on the date of delivery if personally delivered or
the date of receipt or refusal indicated on the return receipt if sent by first
class mail, postage prepaid, registered or certified, return receipt requested,
to the following addresses, unless notice of a change of address in duly given
by one party to the other, in which case notices shall be sent to such changed
address:
If to the Company: Quiksilver, Inc.
15202 Graham Street
Huntington Beach, CA 92649
Attention: General Counsel
Telephone: 714-889-4215
Facsimile: 714-889-4250
If to M._________: ____________________
____________________
____________________
Telephone: _________
19. SUBROGATION. In the event of any payment under this Agreement to
or on behalf of the Indemnitee, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of the Indemnitee against any
person, firm, corporation or other entity (other than the Company) and the
Indemnitee shall execute all papers requested by the Company and shall do any
and all things that may be necessary or desirable to secure such rights for the
Company, including the execution of such documents necessary or desirable to
enable the Company to effectively bring suit to enforce such rights.
20. SUBJECT MATTER AND PARTIES. The intended purpose of this Agreement
is to provide for indemnification and advancement of Expenses, and this
Agreement is not intended
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to affect any other aspect of any relationship between the Indemnitee and the
Company and is not intended to and shall not create any rights in any person as
a third party beneficiary hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"INDEMNITEE"
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[NAME]
"COMPANY"
QUIKSILVER, INC., a Delaware corporation
By:
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Its:
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